Wednesday, February 21, 2018

Four score and six years after the founding of the nation, during the Civil War, Congress passed a statute. The statute mandated that certain officeholders take a loyalty oath—this was a second oath, in addition to the ordinary oath prescribed by Congress pursuant to Article VI. The statute extended to “every person” holding “any office of honor or profit under the government of the United States.” The oath was passed during the Thirty-Seventh Congress. That Congress terminated on March 3, 1863. During that Congress, Senator James Asheton Bayard, Jr. (Delaware-Democrat) failed (or, perhaps, refused) to take the newly prescribed loyalty oath. Bayard was reelected in 1863.

When the first regular session of the new Congress met, Senator Sumner (Massachusetts-Republican) put forward a resolution requiring all senators to take the newly prescribed loyalty oath. Bayard refused to do so on a point of principle. Bayard contested the constitutionality of the statute (at least, as applied to members of Congress) and also its construction: i.e., Did the statute’s language reach members of Congress? Bayard made a variety of arguments. Bayard opened a copy of American State Papers, which was by then some three decades old, and on January 19, 1864, on the floor of the Senate, he proceeded to state . . . .

The paper can be found here: Seth Barrett Tillman, The
Foreign Emoluments Clause, the Teachings of the American Civil War, and a
Response to Mike Stern: The
Aftermath of the Hamilton Documents Imbroglio (Feb. 21, 2018), https://ssrn.com/abstract=3126689.

Sunday, February 18, 2018

In 2017, three sets of plaintiffs in
three different federal district courts brought civil actions against the President
of the United States: each action alleged that the President has and continues
to violate the Constitution’s Foreign Emoluments Clause. The Foreign Emoluments Clause provides:

No
Title of Nobility shall be granted by the United States: And no Person holding
any Office of Profit or Trust under them,
shall, without the Consent of the Congress, accept of any present, Emolument,
Office, or Title, of any kind whatever, from any King, Prince, or foreign
State.

There
are only a handful of federal cases discussing the Foreign Emoluments Clause. Not one of these cases has any extensive discussion of the scope of the Foreign
Emoluments Clause or the scope of the clause’s Office of Profit or Trust under the United States language (“Office-language” or “Office . . . under the United States-language”).
Not one of these cases, expressly or impliedly, affirms or denies that the
clause applies to the President. Likewise, there is no decision by any court of
record (of which I am aware) which affirms or denies that the clause’s Office-language, or closely similar
language in any other constitutional provision, encompasses the presidency. If the
courts were to reach the merits, the issue at hand—i.e., the scope of the clause’s Office-language—is entirely one of first impression. Still, there
has been some discussion of the clause and its Office-language, primarily, but not exclusively, amongst academics.
Such discussion has appeared in the Department of Justice’s Office of Legal
Counsel memoranda, academic articles, popular magazines focusing on news,
politics, and law, and in amicus briefs.

Since 2008, I have argued in multiple
publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other
constitutional provisions) reaches only appointed
federal officers, and not any elected
federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned
some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing
my position on the subject. There are far too many such views—many of which contradict
one another—many of which (do not appear to) have gone through any sort of
independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly
in their broad methodological approach.

[END]Welcome Instapundit readers!Here is part of the article: Seth Barrett
Tillman, A Response to Professor Victoria F. Nourse’s Reclaiming the Constitutional Text from Originalism: The Case of
the Foreign Emoluments Clause (Feb. 18,2018),
https://ssrn.com/abstract=3125806.

Friday, February 16, 2018

As illustrated above, much of the
discussion regarding the Foreign Emoluments Clause, the scope of its Office-language, and relevant historical
inquiry has been less than useful. I think there are several reasons why we
have come to this unfortunate state of affairs.

First, the commentators above (along
with other commentators) believe their position carries a strong presumption of
correctness (if not certitude), that it is my duty to displace that presumption,
and that they will be the judges if I have carried that burden. Certainly, I
have never agreed to such terms for this debate. Nor should I. The text of the
Constitution does not expressly state that the Foreign Emoluments Clause
applies to the President. The text of the Constitution does not expressly
define the scope of the Constitution’s “Office of Profit or Trust under [the
United States]” language. The Supreme Court has had no occasion to address the
scope of the clause or the meaning of the clause’s operative language (or even the
scope of similar language in other clauses.). As educated generalists who have
chosen to recently inject themselves into this debate, their opinions should
get a hearing. I would add: so should mine. And since, what is involved here is
a debate between opinions lacking firm judicial support, our divergent ideas (and
we) meet as equals. I add that the Legal Historians are supporting the plaintiffs
in active litigation. Generally, in civil litigation, the burden of proof,
production, and persuasion falls on the plaintiff, not on the defendant.

Second, it is time for my
intellectual opponents to be fair. Claims that they have made that they know or
now know to be incorrect should be withdrawn or revised. Claims that they have
made asserting the existence of documentary support, should be supported, and promptly,
with actual documents—or else the claims should be withdrawn. If they have to go
through this process repeatedly, they might ask themselves if their position (and
expertise) is really as strong as they have led themselves and others to
believe.

Third, it is time for my
intellectual opponents to be forthcoming in regard to an improved debate and
debate atmosphere—an atmosphere rooted in mutual respect and goodwill. If the
debate is going to be informative, might not I (or you, the reader) ask these
commentators to do more than make a mere tactical claim: viz., the President falls under the aegis of the
Foreign Emoluments Clause. Might not I (or you, the reader) ask these
commentators to turn to the more challenging intellectual question: viz., What is the scope of the Foreign Emoluments
Clause and its operative “Office of Profit or Trust under [the United States]”language? Some heavy intellectual lifting
might be involved. Once they have defined that language, maybe they could,
maybe they should, tell us if the clause extends to: (i) Senators, (ii)
Representatives, (iii) presidential electors, (iv) federal jurors, (v) attorneys
admitted to practice in federal courts, (vi) advisors to the President who lack
individualized legal discretion to affect binding legal relations, (vii) state
judges subject to mandamus orders by federal courts, (viii) elected territorial
officials, (ix) territorial officers appointed by elected nonjudicial
territorial officials, (x) enlisted federal military personnel, (xi) state
militia officers called into national service by the President, (xii) federal
civil servants, (xiii) federal contractors, (xiv) members of a national Article
V convention, (xv) members of state ratifying conventions called pursuant to
Article V, (xvi) American appointees to treaty created offices (where the
treaty is not domesticated), (xvii) multistate compact officials, (xviii) qui tam plaintiffs asserting federal
causes of action, (xix) holders of letters of marque and reprisal, (xx) trustees,
directors, members, officers, employees, and other agents of federally
chartered trusts, corporations, and other private entities with legal
personality, and (xxi) individuals affiliated with private entities created
under state (or federal, or even foreign) law in which significant equity (or, possibly,
debt) is held by the United States government. I do not ask this to satisfy idle
curiosity. The commentators above believe they have a coherent (if not correct)
intellectual position. But
the only way for us to be confident that their position is coherent (or
correct) is for them to communicate their position to the rest of us so that we
can see how it plays out, not only in regard to the presidency, but in regard to
other federal and state positions. And if they cannot do so, is not that
telling?

[END]

Welcome Instapundit readers!Here is part of the Article: Seth Barrett
Tillman, A Response to Professor Victoria F. Nourse’s Reclaiming the Constitutional Text from Originalism: The Case of
the Foreign Emoluments Clause (Feb. 18,2018),
https://ssrn.com/abstract=3125806.

Saturday, January 13, 2018

"They will bring with them the principles ofthe governments they leave, imbibed in their early youth;or, if able to throw them off, it will be in exchangefor an unbounded licentiousness, passing, as is usual,from one extreme to another. It would be a miraclewere they to stop precisely at the point of temperateliberty.

These principles, with their language,they will transmit to their children. In proportionto their numbers, they will share with us the legislation.They will infuse into it their spirit, warp and biasits direction, and render it a heterogeneous, incoherent, distracted mass."—Thomas Jefferson, "Notes on the State of Virginia" (1785)

The Reform Club, c. 1915

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